Terrell v. Reeves , 103 Ala. 264 ( 1893 )

HEAD, J.

A devise or bequest must be so construed as to give it legal validity, unless its terms plainly manifest an intention, on the part of the testator, which, carried out, would offend some rule or policy of law. The real intention of the testator must be ascertained upon a consideration of the whole will, each clause being read in the light of its context; and if there may fairly be deduced, from the language used, an intention in consonance with law, that intention will be supposed to have been in the mind of the testator, rather than that he entertained a purpose to violate thelaw. Doubtful or ambiguous terms will be construed, if they can be, in- favor of the validity of the disposition..— Rugely v. Robinson, 10 Ala. 702.

The present dispute arises mainly upon the construction to be given portions of the first and second items of Mr. Gatlin’s will, as follows : Item 1. “To my daughter Elizabeth F. Terrell, I devise all my real estate not hereinafter disposed of, for and during her natural life, and at her death to such child or children of her as may survive her, and the descendants of such child or children as may then be dead — share and share alike, excepting that said descendants shall take the share to which their deceased parent would have been entitled if alive.” Item 2. “If my said daughter Elizabeth shall die leaving no children her surviving, nor the descendants of any such child or children, or if such child or children and the descendants of such child or children shall die before attaining the age of twenty-one years, leaving no lineal descendants him, her or them surviving, I devise and bequeath all the property hereinbefore devised and bequeathed to my said daughter, to the children of my daughter, Thirza Jane Cade, which she now has or may hereafter have, and the descendants of such of said children as may then be dead, such descendants to take the share to which their deceased parent would be entitled if living.” The appellants maintain that the devise is to Mrs. Terrell and the heirs of her body, creating in her an estate tail at the common law, converted into a fee by force of our statute; or that if a life estate only in her was intended, with remainder over, the limitation over of the remainder is too remote, offending the rule against the creation of perpetuities.

It is very clear that the testator intended to vest in Mrs. Terrell a life estate only ; and whether the limitation over be held too remote or otherwise, the intention was to vest, upon the contingencies written .in the will, the estate in remainder in the designated persons as purchasers. We, therefore, dismiss the contention that an estate tail was created 'without further comment. Is the limitation over too remote? In the first instance, as we have seen, the remainder is given to the child or children of the life tenant living at her death, and the descendants of such child or children as may then be dead — share and share alike, excepting that said descendants shall take the share to which their deceased parent would have been entitled. if .alive. . The vesting- of the remainder., under this clause, is further qualified and limited, by. the provision in the second item of the will, to the effect, that if the life tenant die leaving no child then living, nor descendants of any such child or children, or if there be such child or children or descendants of such child or children, but they shall die before reaching majority, then the estate shall vest in the children of Mrs. Cade which she had at the testator’s death, or might thereafter have, and the descendants of such children as may be dead at the time it should be determined the remainder could not vest absolutely under the first item of the will, with the similar provision that such descendants shall take the share to which their deceased parent would be entitled if living. The controversy seems to turn upon the scope and effect which attach to'the word “descendants,” as the testator saw fit to use that word. Appellants contend that this word comprehends descendants of the ancestor to the remotest degree, unless by the contingency named in the devise, the running down the line be determined by the arrival at the age of twenty-one, of some descendant or descendants — a corn tingency which might happen beyond the period prescribed by the rule against perpetuities, or might never happen. Appellees, on the other hand, contend that the word as used in the first item, and as first used in. the second item, of the will, refers to descendants living at the death of Mrs. Terrell, the life tenant; and as last used in the second item, to descendants living when the vesting of the remainder, under the first item, should fail. Our reading of the will impels us to agree with the latter contention. As we have remarked, we must accord validity to the devise, if we can do so, and at the same time effectuate the intention of the testator and do violence to no principle or policy of the law. Now, it can not, we think, be controverted that the term “descendants,” as firstly and secondly used in the second item of the will, refers to the same class or designation of persons as the testator intended to comprehend when he used the word in the first item. It obviously has the same meaning in both connections. Examine the second item, and we see there is no room for sound argument that the word has any other reference than to the descendants of a deceased child or children of. Elizabeth,, living at her death. The language is;' “If my said daughter Elizabeth shall die, leaving no .child, her surviving, nor the descendants of any such child or children,” (her sttrviving, we necessarily interpolate), or if such child or children and descendants of such child or children shall die, &c., then over. Let us then put the two items together, and paraphrase thus : “To my daughter Elizabeth * * * * for and during her natural life, and at her death to such child or children of her as may survive her and the descendants of such child or children as may then be dead; but if she shall die leaving no child, nor the descendants of any such child or children, her surviving ; or if such child or children, and such descendants of such child or children shall die before attaining the age of twenty-one years, leaving ho lineal descendants him, her or them surviving,” then over. We have the obvious purpose of the testator to provide, in the first item, for the first objects, and in the second item, in the event of their failure, for the second objects of his bounty; and in the latter disposition he clearly makes known who the first objects 'were, and defines them to be children of Mrs. Terrell and descendants of her children, living at her heath, with the qualification that the remainder shall not vest absolutely if such child or children or descendants shall die before attaining the age of twenty-one years, leaving no lineal descendants, him, her or them surviving; on happening of which contingency, the estate goes over to the children of Mrs. Cade, &c. These considerations illustrate the meaning of the testator when he used the word “descendants” in the limitation over to the children of Mrs. Cade, and the descendants of such children, &c. We hold that in neither connection did the testator mean descendants in the remotest degree ; and this conclusion, we think, is plainly deducible from the will, without doing violence to any of its provisions. Our construction is further enforced by the form and connection of the per stirpes clauses found in these devises. It follows that the remainder must have vested absolutely, if at all, within a life or lives in being and twenty-one years and a fraction of a year afterwards ; and the contingency upon which the children, &c.,' of Mrs. Cade were to take having happened, the estate vested in them... • .. .

We are of opinion that the defendant, Lee K. Terrell, was-not liable lor that portion of the rent, for the year 1891, which was assessed against him by the city court. It is true the bill of exceptions recites that he went into immediate possession of the land, upon the execution of the conveyance to him by Mrs. Terrell in July, 1891, and Mrs. Terrell’s tenants, then in possession, attorned to him ; but the facts further show that prior (we assume) to the conveyance to Lee K. Terrell, Mrs. Terrell, the life tenant, assigned the note she had taken from Cunningham & Co., her tenants, in January, 1891, for the rent for that year. Cunningham & Co., as her tenants, had possession of the whole land and had growing crops thereon when she conveyed to Lee K. in July, and when she died, in August following; the crops not having been gathered until the end of that year, the tenants continuing in possession, making and gathering their crops, until that time. They paid the rent to the assignee of the rent note, not to Lee K. Terrell. The assignment of the rent note by Mrs. Terrell severed the rent from the reversion, so far as Lee K. was concerned, and he acquired by his conveyance. of the land from her, no right to such rent or any part thereof. He received none of it. So far as Mrs. Terrell had the right to assign it, her assignee became entitled to it. Cunningham & Co. had the right to retain possession of the land, to complete and gather their crops, until the end of the year, without accountability for rent other than that they had contracted to pay. Lee K. Terrell had no right to require rent from them. The possession of the land was not unlawfully detained from the plaintiffs, the remaindermen, until January 1, 1892; for Cunningham & Co. had the undoubted right of possession until then. The case of Price v. Pickett, 21 Ala. 741, was different. There the party who had actually received the rent for the year in which the life estate expired, was sued in assumpsit, by the party claiming in remainder, to recover a proportionate share of the sum so received, and the action was held maintainable. The defendants, Terrell and Cunningham & Co., became jointly liable for damages from and after January 1, 1892, to the time of trial. Damages from that time were assessed against the latter, and no greater sum- should have been assessed against the former. Whether the plaintiffs, the remaindermen, are entitled to recover against Cunning-ham & Co., in any form 'of action, for any -part of the rent for the year in which the life tenant died, is a question not presented by the record and is not decided. We cite the following cases in so far as they may bear upon the question.— 39 Ala. 113 ; 58 Ib. 277; 60 Ib. 448; 62 Ib. 283; 78 Ib. 158 ; 79 Ib. 164 ; 90 Ib. 449. The judgment will be here corrected to conform to our ruling, and, as corrected, will be affirmed.

Corrected and affirmed.